State v. Kukucka

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STATE OF CONNECTICUT v. DALE
HOLLISTER KUKUCKA
(AC 39039)
Lavine, Sheldon and Elgo, Js.
Syllabus
Convicted of the crimes of strangulation in the first degree, sexual assault
in the third degree and assault in the third degree in connection with
an assault at a fife and drum corps gathering, the defendant appealed
to this court. He claimed, inter alia, that the trial court improperly failed
to inquire into a potential conflict of interest between him and his
defense counsel involving a grievance the defendant had filed against
defense counsel. Held:
1. The trial court did not fail in its duty to inquire into a potential conflict
of interest between the defendant and his defense counsel: because the
defendant, at trial, simply moved for new counsel and never made a
claim that the grievance he filed against his defense counsel presented
a conflict of interest, his claim of a conflict of interest was raised for
the first time on appeal and, thus, there was no timely conflict objection
at trial, the trial court gave the defendant two days to prepare a specific
and extensive list of his complaints against his defense counsel, which
it thoroughly addressed with the defendant at a hearing, and even though
the court was not asked to address a conflict of interest, the defendant
did not demonstrate how an inquiry into the nature of his grievance
would have been materially different from the inquiry that the trial court
conducted into the nature of his complaints against his defense counsel;
moreover, given the context in which the grievance complaint was raised
and the defendant’s failure to assert a conflict of interest, the trial court
had no reason to believe that a particular conflict of interest existed
or that further inquiry was necessary, the record revealed nothing in
subsequent hearings that triggered any duty to inquire further about the
grievance complaint, and in light of the court’s extensive exchange with
the defendant, the assurances from defense counsel, and the defendant’s
expressed satisfaction with the resolution of his concerns culminating
with his withdrawal of his motion for new counsel, the trial court had
no additional duty to inquire about the substance of the grievance.
2. The trial court did not abuse its discretion in denying the defendant’s
motion to suppress in-court and out-of-court identifications of him that
were made by a witness to the assault; even if the identification proce-
dure of showing the witness a Facebook photo on a cell phone of the
alleged assailant forty-five minutes after the assault was suggestive,
given the public safety concerns and the immediate need to apprehend
the assailant, the trial court properly found that the police procedure
used was necessary due to exigent circumstances, and the court also
concluded that the witness’ identification of the defendant was reliable,
as he had numerous opportunities to view the defendant during the
daylong event, which included several exchanges with the defendant
prior to the assault and attempts by the witness to restrain the defendant
on the floor following the assault in a face-to-face physical altercation.
Argued October 19, 2017—officially released April 24, 2018
Procedural History
Substitute information charging the defendant with
the crimes of strangulation in the first degree, sexual
assault in the third degree, unlawful restraint in the
first degree, assault in the second degree, and assault
in the third degree brought to the Superior Court in the
judicial district of Middlesex, where the court, Gold,
J., denied the defendant’s motion to suppress certain
evidence; thereafter, the matter was tried to the jury;
verdict of guilty; subsequently, the court rendered judg-
ment in accordance with the verdict on the charges of
strangulation in the first degree, sexual assault in the
third degree, and assault in the third degree, from which
the defendant appealed to this court. Affirmed.
John L. Cordani, Jr., with whom was Damian K.
Gunningsmith, for the appellant (defendant).
Denise B. Smoker, senior assistant state’s attorney,
with whom were Russell Zentner, senior assistant
state’s attorney, and, on the brief, Peter A. McShane,
state’s attorney, for the appellee (state).
Opinion
ELGO, J. The defendant, Dale Kukucka, appeals from
the judgment of conviction, rendered after a jury trial, of
strangulation in the first degree in violation of General
Statutes § 53a-64aa (a) (1) (B), sexual assault in the
third degree in violation of General Statutes § 53a-72a
(a) (1), and assault in the third degree in violation of
General Statutes § 53a-61 (a) (1).1 On appeal, the defen-
dant claims that the trial court improperly (1) failed to
inquire into a potential conflict of interest between him
and his defense counsel due to the existence of a griev-
ance filed against defense counsel by the defendant and
(2) denied his motion to suppress the in-court and out-
of-court identifications of him made by a witness to the
assault. We affirm the judgment of the trial court.
The following facts, which the jury reasonably could
have found, are relevant to our resolution of the defen-
dant’s appeal. On October 19, 2013, the victim2 attended
a fife and drum corps muster at the Grange Hall in East
Haddam with her friend, Jamie Murray (Jamie), and
Jamie’s family. The event, which was hosted by the
Moodus Drum and Fife Corps, featured a parade of
approximately twenty fife and drum corps and a beer
tent in the afternoon and a bonfire in the evening. Many
members of the participating fife and drum corps set
up tents and brought recreational vehicles (RVs) to stay
overnight on site. At the event, the victim and Erin
Murray, Jamie’s sister, were serving beer and cider in
the beer tent. The defendant, a member of one of the
participating fife and drum corps, visited the beer tent
multiple times, both alone and with his date, Melody
Baker. At approximately 5 p.m., when the defendant
attempted to get another beverage from the beer tent
after the beverage supply had been exhausted, Patrick
Murray (Murray), Jamie’s father and an event organizer,
told the defendant that they were finished serving
drinks. Later, however, the defendant entered the beer
tent again. On that occasion, while Murray was cleaning
up the beer tent, Murray’s daughter, Erin Murray, called
for him from the counter of the beer tent and Murray
looked in her direction. When Murray looked up and
saw the defendant, he firmly told him, once again, that
they were out of drinks. Soon thereafter, when Murray
saw the defendant approaching the beer tent a third
time, he yelled at the defendant: ‘‘We’re done. It’s
gone. Go.’’
Later in the evening, the victim and Jamie walked to
the bonfire at the event. While sitting at the bonfire,
the victim and Jamie talked with the defendant and
Baker. At approximately 11:45 p.m., the victim went to
the women’s bathroom in the Grange Hall by herself.
The victim was washing her hands when someone came
up behind her and attacked her, grabbing her neck with
his right hand and covering her mouth and part of her
nose with his left hand. In the course of resisting her
attacker, the victim broke a window with her left elbow
and banged on the wall of the bathroom. The victim
was not able to remove her assailant’s hands from her
mouth or throat and ultimately lost consciousness. The
victim was not able to identify her assailant following
the incident.
At the same time, Erin McNamara, an event host,
and Murray agreed that it was a good time to do a
walkthrough of the Grange Hall and close it up for the
evening. While McNamara and Murray were walking
through the building, they heard grunting and thumping
sounds along with sounds of ‘‘glass crunching or break-
ing’’ coming from the women’s bathroom at the front
of the building. McNamara proceeded to open the door
to the bathroom, when she saw the victim lying
motionless on the floor and the defendant straddling
her. The victim’s shirt had been pushed up to just under
her breasts and the defendant’s hands were under her
shirt. McNamara locked eyes with the defendant and
ordered him to leave the bathroom. The defendant then
moved out of the bathroom. McNamara went directly
to the victim, assessed her condition, and recognized
that she was Jamie’s friend. As the defendant walked
out of the bathroom, Murray attempted to take him to
the floor, but was unsuccessful. The defendant punched
Murray in the face multiple times while they were fight-
ing in the hallway outside the bathroom. During the
altercation, the defendant attempted to enter the bath-
room once again but McNamara ordered him out. Mur-
ray and the defendant resumed fighting after the
defendant left the bathroom the second time. During
the fight, the defendant hit the crash bar on the main
door, pushed it open and ran away.
McNamara called 911 and was asked by the dis-
patcher to provide a description of the assailant. McNa-
mara stated that she distinctly saw that he was
Caucasian, approximately six feet tall and weighing
approximately 220 pounds, who had dark hair and was
wearing dark pants and a Kelly green fleece jacket. The
police and an ambulance arrived at the scene shortly
thereafter. Once the victim regained consciousness, she
left the scene in the ambulance for medical treatment.
Murray gave a statement to the police about what had
happened and provided a description of the assailant
to Philip Soucy, a trooper with the state police. Approxi-
mately ten minutes after Soucy had taken Murray’s
statement, Baker approached Soucy after she had spo-
ken with people in the area. Baker told Soucy that she
knew a man named Dale who people were saying had
sexually assaulted a woman. Using her cell phone,
Baker showed Soucy a photograph of the defendant
from the defendant’s Facebook3 page. With Baker’s per-
mission, Soucy took her cell phone and showed the
Facebook photograph to Murray.4 Soucy asked Murray
if he recognized anybody in the photograph. Murray
responded that he recognized the individual, saying
‘‘that’s the guy I took off [the victim].’’
The defendant subsequently was arrested and
charged with strangulation in the first degree, sexual
assault in the third degree, unlawful restraint in the
first degree, assault in the second degree and assault
in the third degree. The defendant was tried to a jury,
which found him guilty on all counts. The court ren-
dered judgment on the jury’s verdict; see footnote 1 of
this opinion; sentencing him to a total effective sentence
of fifteen years imprisonment, execution suspended
after ten years. This appeal followed.
I
The defendant first claims that the trial court failed
to inquire about a potential conflict of interest between
him and his appointed legal counsel, James McKay.
Specifically, the defendant argues that the court erred
in failing to inquire into the nature of a grievance com-
plaint that he had filed against McKay. We disagree.
The following additional facts are relevant to our
resolution of the defendant’s claim. Approximately six
months prior to trial, although he was represented by
McKay, the defendant filed a self-represented motion
for a speedy trial. The motion was heard in court on
April 7, 2015. At that time, the defendant claimed that
he was disappointed with McKay’s representation and
asked that a special public defender be appointed for
him by the court in lieu of McKay. The court inquired
briefly as to the basis of the defendant’s dissatisfaction
and ultimately continued the case for two days ‘‘so that
[the defendant] could have an opportunity to prepare
a statement in which he would specifically identify the
nature of his dissatisfaction, and point specifically to
shortcomings, as he sees it anyway, in . . . McKay’s
representation.’’
On April 9, 2015, the defendant appeared before the
court and provided the court with ‘‘concrete examples
of why [he was] dissatisfied.’’ First, the defendant
expressed his belief that McKay and the prosecution
had ‘‘teamed up’’ against him, as certain items of evi-
dence had not been disclosed to counsel by the prosecu-
tion. Second, the defendant stated that McKay had
‘‘misinformed and manipulated’’ him into submitting to
a ‘‘psychological evaluation that [McKay] knew, well
and good . . . could be used by the prosecution as
discovery and outright [lied] to me about the process
of this motion he filed.’’ Third, the defendant claimed
that the delay in trial had resulted in actual and substan-
tial prejudice against him. Lastly, the defendant listed
fifteen ‘‘improprieties’’ by McKay, including his alleged
failures to file motions, to seek pretrial discovery, to
raise issues of insufficient evidence, to obtain evidence
by discovery, to obtain critical documents, to obtain
medical records, to properly advise him, to suppress
photographs, to pursue his speedy trial claim, to con-
duct basic legal research, to visit the crime scene, and
to interview the victim. The court addressed each of
the defendant’s claims, explaining McKay’s role in the
case to the defendant in great detail. McKay also
addressed the court at length, explaining that he was
ready to continue representing the defendant zealously.
Describing the court’s response as a ‘‘wonderful rep-
resentation of conflict resolution,’’ the defendant with-
drew his motion for the appointment of new counsel.
At the same time, the defendant stated to the court that
he had filed a grievance against McKay.5 In response
to that statement, McKay stated that the grievance had
not been brought to his attention before and that he
would be required to respond to it. The court then asked
the defendant if he presently intended to pursue the
claims in the grievance. The defendant responded,
‘‘that’s something I’m gonna have to go home and pray
and think about, but the way it’s looking right now,
probably not.’’ (Emphasis added.)
Three months later, the defendant sent the court a
letter dated July 8, 2015, in which he wrote that the
court had ‘‘never granted or denied [his] motion for
replacement of counsel.’’ In the letter, the defendant
explained that when he reviewed the April 9, 2015 tran-
script, he realized that the record did not contain a
ruling from the court on his motion for new counsel.
The defendant stated: ‘‘I chose to suspend the speedy
trial motion so I could pray, ponder, and think about
if I felt comfortable continuing to have . . . McKay
represent me . . . . I continue to have an open griev-
ance filed against . . . McKay and have responded in
writing to his [rebuttal].’’
At the next hearing, on July 14, 2015, the court asked
the defendant to clarify his intentions in light of the
July 8, 2015 letter and given the court’s understanding
that his concerns already had been addressed. When
the defendant asked the court to rule on his motion for
new counsel, the court reminded the defendant that he
had withdrawn that motion on April 9, 2015. As the
court stated: ‘‘I do not believe there are any motions
that I have failed to rule upon. So, I ask you, once again,
given the fact that I have received this letter dated July
[8, 2015], what is it that you are asking me to do?’’
The defendant stated that ‘‘[w]hen [he] suspended [his]
motion for a speedy trial . . . [he] was under the
impression [he] still needed to go home and to consider,
pray and ponder over a difficult decision as to whether
or not to retain . . . McKay as counsel.’’ The court
then explained to the defendant that ‘‘[y]ou are free to
file any motions that you want to make. But, right now
you keep saying to me you want me to rule on something
that you have, previously, withdrawn.’’ The defendant
then asked the court to consider a ‘‘new motion for
replacement of counsel.’’ The court responded by ask-
ing, ‘‘what will be the reason for that? Are you hiring
a new lawyer?’’ The defendant responded, ‘‘I am in the
process of contemplating and thinking about that, yes,
Your Honor.’’ The court explained to the defendant that
‘‘unless you’re going to present to me [a] compelling
reason why there should be a new lawyer then . . .
McKay is going to remain [your] lawyer. I am not going
to accept, at this point, that you are praying and ponder-
ing over whether or not you should retain private coun-
sel. So, if you’re hiring private counsel I would,
sincerely, and seriously, urge you to tell that lawyer
with whom you’re engaged in negotiations that the trial
is scheduled to begin on September 21.’’
The defendant reiterated that he filed a grievance
with the Statewide Grievance Committee but that he
had not yet heard back from the committee. The court
repeatedly communicated to the defendant that he was
free to file another motion for new counsel and to
explain why he was not satisfied with McKay. McKay
addressed his relationship with the defendant, stating
that he was ‘‘perfectly willing and able to proceed.’’
Finally, the court advised the defendant: ‘‘If you want
to come to me with a motion and tell me why you think
you’re entitled to new appointed counsel, the ball’s in
your court and you’ll have to file it.’’ The defendant
thereafter did not file a motion for new counsel, and
McKay continued to represent the defendant.
On appeal, the defendant argues that the court was
obligated to inquire into a possible conflict of interest
as a result of the grievance complaint that he filed
against McKay. ‘‘The sixth amendment to the United
States constitution as applied to the states through the
fourteenth amendment . . . guarantee[s] . . . a crim-
inal defendant the right to effective assistance of coun-
sel. . . . Where a constitutional right to counsel exists,
our [s]ixth [a]mendment cases hold that there is a cor-
relative right to representation that is free from conflicts
of interest. . . . This right requires that the assistance
of counsel be untrammeled and unimpaired by a court
order requiring that one lawyer shall simultaneously
represent conflicting interests. . . . Moreover, one of
the principal safeguards of this right is the rule
announced by this court that [a trial] court must explore
the possibility of conflict . . . when it knows or rea-
sonably should know of a conflict . . . .’’ (Citations
omitted; internal quotation marks omitted.) State v.
Vega, 259 Conn. 374, 386, 788 A.2d 1221, cert. denied,
537 U.S. 836, 123 S. Ct. 152, 154 L. Ed. 2d 56 (2002). ‘‘To
safeguard a criminal defendant’s right to the effective
assistance of counsel, a trial court has an affirmative
obligation to explore the possibility of conflict when
such conflict is brought to the attention of the trial
[court] in a timely manner.’’ (Internal quotation marks
omitted.) State v. Drakeford, 261 Conn. 420, 427, 802
A.2d 844 (2002).
Our Supreme Court previously has articulated ‘‘two
circumstances under which a trial court has a duty to
inquire with respect to a conflict of interest: (1) when
there has been a timely conflict objection at trial . . .
or (2) when the trial court knows or reasonably should
know that a particular conflict exists . . . .’’ (Internal
quotation marks omitted.) State v. Vega, supra, 259
Conn. 388. The defendant claims that the latter duty
applies in this case, arguing that the filing of a grievance
complaint triggered a duty to inquire because the court
knew or reasonably should have known that a particular
conflict existed. It is undisputed that the defendant
never raised a conflict objection at trial.6
Our analysis is limited to the actions of the trial court,
specifically whether the trial court satisfied its duty to
inquire into a potential conflict of interest.7 We review
the defendant’s claim as a question of law, as to which
our review is plenary. See State v. Parrott, 262 Conn.
276, 286, 811 A.2d 705 (2003). In analyzing the defen-
dant’s claim, we look to the definition of an attorney’s
conflict of interest as articulated by our Supreme Court.
An attorney conflict of interest is defined as ‘‘that which
impedes his paramount duty of loyalty to his client.
. . . Thus, an attorney may be considered to be laboring
under an impaired duty of loyalty, and thereby be sub-
ject to conflicting interests, because of interests or fac-
tors personal to him that are inconsistent, diverse or
otherwise discordant with [the interests] of his client
. . . .’’ (Internal quotation marks omitted.) Id., 287–88.
The defendant relies on Morgan v. Commissioner of
Correction, 87 Conn. App. 126, 866 A.2d 649 (2005), for
his claim that the trial court failed in its duty to inquire
into the possibility of a conflict of interest. In Morgan,
this court considered whether the petitioner had been
denied effective assistance of counsel when the habeas
court denied his motion to disqualify his attorney with-
out inquiring into the nature of three grievances the
petitioner had filed. Id., 127–28. This court concluded
that the habeas court’s summary denial of the motion
to disqualify was improper, in that the habeas court
failed to inquire whether the grievances concerned a
possible conflict of interest. Id., 142–43. As a result, this
court remanded the case for further proceedings to
determine the nature of the three grievances. Id., 143;
see also In re Ceana R., 177 Conn. App. 758, 771–72,
172 A.3d 870 (2017), cert. denied, 327 Conn. 991,
A.3d (2018).
In Morgan, the petitioner specifically asserted a con-
flict of interest before the habeas court and claimed that
he disagreed with his habeas counsel’s trial strategy.8
Morgan v. Commissioner of Correction, supra, 87
Conn. App. 129. When advised that the petitioner had
filed three grievances, the habeas court stated that dis-
satisfaction with trial counsel’s strategy was not a con-
flict of interest. Id. As this court observed in Morgan,
at no point did the habeas court inquire into the nature
of the grievances filed against habeas counsel. Id.
In Vega, which the defendant also cites in support
of his claims, defense counsel raised before the trial
court the claim that the existence of a grievance which
the defendant filed against him gave rise to a per se
violation of the right to the effective assistance of coun-
sel. State v. Vega, supra, 259 Conn. 388, 389–90. Like the
petitioner in Morgan, the defendant in Vega specifically
argued before the trial court that the filing of the griev-
ance gave rise to a conflict of interest. Id., 389–90.
Holding that a grievance does not constitute a per se
violation of the right to the effective assistance of coun-
sel, the court in Vega also held that the trial court
conducted an appropriate inquiry into the ‘‘nature of
the defendant’s complaints about [trial counsel’s] rep-
resentation’’ and properly found no conflict of interest.
(Emphasis added.) Id., 390–91.
Here, the defendant contends that the trial court,
upon learning of the defendant’s grievance, ‘‘appears
to have repeated the same error as the trial court in
Morgan,’’ because it failed to ask about the specific
nature of the grievance. We disagree.
In contrast to the present case, in both Morgan and
Vega the claims were squarely raised before the court
that the grievances presented conflicts of interest. Here,
the defendant made no such claim. Instead, the defen-
dant moved for new counsel and never specifically
asserted a concern that his trial counsel had a conflict
of interest. The defendant thus claims a conflict of inter-
est for the first time on appeal. This distinction is signifi-
cant for several reasons.
We reiterate that our Supreme Court observed in
Vega that ‘‘[t]here are two circumstances under which
a trial court has a duty to inquire with respect to a
conflict of interest: (1) when there has been a timely
conflict objection at trial . . . or (2) when the trial
court knows or reasonably should know that a particu-
lar conflict exists . . . .’’ (Internal quotation marks
omitted.) State v. Vega, supra, 259 Conn. 388. Because
it is undisputed that the defendant did not raise a timely
conflict of interest objection before the trial court, our
analysis of the court’s duty to inquire is therefore based
on whether the court knew or reasonably should have
known that a particular conflict existed.
Whether the trial court knew or reasonably should
have known that a particular conflict of interest existed
requires this court to consider the context in which a
duty to inquire is triggered. See Cuyler v. Sullivan, 446
U.S. 335, 347, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980)
(considering circumstances of case to determine
whether trial court had duty to inquire whether there
was conflict of interest). Here, the court had before it
an oral motion for new counsel, which itself triggered
the trial court’s duty to determine the basis for the
defendant’s complaints.
‘‘Where a defendant voices a seemingly substantial
complaint about counsel, the court should inquire into
the reasons for dissatisfaction.’’ (Internal quotation
marks omitted.) State v. Robinson, 227 Conn. 711, 725,
631 A.2d 288 (1993); see also State v. Gonzalez, 205
Conn. 673, 685, 535 A.2d 345 (1987). ‘‘The extent of an
inquiry into a complaint concerning defense counsel
lies within the discretion of the trial court. . . . More-
over, the defendant’s right to be represented by counsel
does not grant a defendant an unlimited opportunity to
obtain alternate counsel on the eve of trial . . . and
may not be used to achieve delay in the absence of
exceptional circumstances. . . . The appellate scru-
tiny of the trial court’s inquiry into complaints concern-
ing adequacy of counsel must be tempered by the timing
of such complaints.’’ (Citations omitted; internal quota-
tion marks omitted.) State v. Robinson, supra, 725.
The trial court, in continuing the hearing for two
days, gave the defendant the opportunity to prepare a
specific and extensive list of his complaints regarding
McKay, which it thoroughly addressed with the defen-
dant. Although the court was not specifically asked to
address a conflict of interest, the trial court’s approach
went far beyond not only the inquiry conducted in Mor-
gan, but also the inquiry conducted in Vega,9 which our
Supreme Court found to have been appropriate.10 State
v. Vega, supra, 259 Conn. 389. In conclusory fashion,
the defendant argues that the inquiry conducted in the
present case, made in response to the motion for new
counsel, was inadequate under Morgan simply because
it did not inquire into the substance of the grievance
itself. We are not persuaded.
First, the defendant has not demonstrated how an
inquiry into the nature of the defendant’s grievance
would have been materially different from the inquiry
the court conducted into the nature of the defendant’s
complaints about McKay. At its core, the inquiry on a
motion for new counsel is essentially the same inquiry
required of the court when a defendant asserts that the
filing of a grievance raises a conflict of interest, a claim
which, we reiterate, was not before the trial court. Com-
pare State v. Robinson, supra, 227 Conn. 725 (‘‘[w]here
a defendant voices a seemingly substantial complaint
about counsel, the court should inquire into the reasons
for dissatisfaction’’ [internal quotation marks omitted]),
with State v. Vega, supra, 259 Conn. 390–91 (in order
to assess alleged conflict of interest, the trial court was
required to inquire about ‘‘the nature of the defendant’s
complaints about his representation’’).11
Here, the court not only reviewed each of the defen-
dant’s concerns, but the defendant then withdrew his
request for the appointment of new counsel and his
motion for a speedy trial and described the hearing
as ‘‘a wonderful representation of conflict resolution.’’
Apparently as an afterthought, the defendant then
advised the court that he had filed a grievance against
his defense counsel, at which point the court asked the
defendant if he ‘‘[intended] to continue to pursue [his]
claims’’ in the grievance. (Emphasis added.) Signifi-
cantly, the defendant responded: ‘‘Again, that’s some-
thing I’m gonna have to go home and pray and think
about, but the way it’s looking right now, probably
not.’’ (Emphasis added.) The colloquy reflects not only
the trial court’s logical assumption that it had just
reviewed the sum and substance of the defendant’s
grievance with defense counsel, but also the defen-
dant’s comments as implicitly reinforcing that assump-
tion.12 Given the context in which the grievance
complaint was raised and the defendant’s failure, unlike
in Morgan and Vega, to assert a conflict of interest, the
trial court had no reason to believe that a particular
conflict of interest existed or that further inquiry into
such a conflict was necessary. As a result of the court’s
extensive exchange with the defendant, the assurances
from McKay, and the defendant’s expressed satisfaction
with the resolution of his concerns culminating with
his withdrawal of his motion for new counsel, we con-
clude that the court had no additional duty to inquire
about the substance of the grievance.
Moreover, the record reveals nothing in subsequent
hearings that triggered any duty to inquire further about
the grievance complaint. The U.S. Supreme Court has
noted that the duty of inquiry is not triggered ‘‘when the
trial court is aware of a vague, unspecified possibility
of conflict . . . .’’ Mickens v. Taylor, 535 U.S. 162, 169,
122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002). ‘‘Unless the
trial court knows or reasonably should know that a
particular conflict exists, the court need not initiate an
inquiry.’’ Cuyler v. Sullivan, supra, 446 U.S. 347. The
defendant offered no indication that the grievance com-
plaint expressed concerns about counsel beyond the
ones he had articulated in the first hearing. Instead,
three months after the hearing in April, the defendant
was under the mistaken belief that his motion to with-
draw was still pending for the court to rule upon.
Reminding the defendant that he had withdrawn his
motion for new counsel, the trial court duly asked the
defendant for clarification. The defendant then
requested that the court appoint new counsel and sug-
gested that he was ‘‘contemplating and thinking about’’
hiring new counsel, to which the court responded by
urging him to file a motion for new counsel and to
advise new counsel that trial would begin on September
21, 2015. The court at that time made it clear to the
defendant that if he was seeking to remove his attorney
he was free to file any motion he wished in order to
explain why he was entitled to new counsel. In so doing,
the trial court gave the defendant yet another opportu-
nity to formally present to the court, by written motion,
any further concerns that he might have about his coun-
sel’s representation, an opportunity which the defen-
dant declined to pursue. See State v. Robinson, supra,
227 Conn. 727 (‘‘[e]ven though the trial court did not
continually inquire into the defendant’s complaints, it
also did not close the line of communication with the
defendant and allowed him to make frequent pro se
motions to which it gave adequate consideration’’).
As our Supreme Court observed in Robinson, ‘‘a trial
court has a responsibility to inquire into and to evaluate
carefully all substantial complaints concerning court-
appointed counsel, [but its] failure to inquire [into the
defendant’s request for new counsel where the defen-
dant has already made known the reasons for his
request] is not reversible error.’’ (Internal quotation
marks omitted.) Id., 726. As this court also observed in
State v. Patavino, 51 Conn. App. 604, 609, 724 A.2d 514,
cert. denied, 249 Conn. 919, 733 A.2d 236 (1999), it
is well established that ‘‘a criminal defendant has a
constitutional right to the effective assistance of coun-
sel . . . that right, however, is not without limitation.
. . . [I]t is clear that the right to effective assistance
of counsel does not include an unlimited opportunity
to obtain alternate counsel. . . . Inherent in these limi-
tations is a concern for unwarranted interruptions in the
administration of justice.’’ (Citations omitted; internal
quotation marks omitted.) Our review of the record
also indicates that the court carefully advised the defen-
dant of its concerns about the defendant’s failure to
articulate any reason for his request for new counsel
and the timing of his renewed request.13 ‘‘While courts
must be assiduous in their defense of an accused’s right
to counsel, that right may not be manipulated so as
to obstruct the orderly procedure in the courts or to
interfere with the fair administration of justice.’’ (Inter-
nal quotation marks omitted.) Id.
Most importantly for purposes of analyzing the
court’s duty to inquire into a conflict of interest, the
defendant’s trial counsel assured the court from the
outset in April, and repeated again in July, that he could
zealously represent his client. In discharging its duty
to inquire, ‘‘the trial court must be able, and be freely
permitted, to rely upon [defense] counsel’s representa-
tion that the possibility of such a conflict does or does
not exist. . . . The reliance in such an instance is upon
the solemn representation of a fact made by [the] attor-
ney as an officer of the court. . . . The course there-
after followed by the court in its inquiry depends upon
the circumstances of the particular case.’’ (Citations
omitted; internal quotations marks omitted.) State v.
Drakeford, supra, 261 Conn. 427. Notwithstanding his
receipt of the grievance complaint, counsel represented
to the court that he felt he had a good working relation-
ship with the defendant and that the issues that had
been raised by the defendant had been addressed. The
court was free to rely upon defense counsel’s represen-
tations, and in fact shared with the defendant its obser-
vations that counsel had ‘‘not only ably, but zealously
[represented the defendant] for an extensive period of
time, [had] retained an expert on [his] behalf, [had]
read all the reports and [was] now ready to begin trial.’’
The duty of inquiry into a conflict of interest impli-
cates a defendant’s sixth and fourteenth amendment
right to the effective assistance of counsel. See State
v. Crespo, 246 Conn. 665, 685–86, 718 A.2d 925 (1998),
cert. denied, 525 U.S. 1125, 119 S. Ct. 911, 142 L. Ed.
2d 909 (1999). As we have already stated, in the absence
of an assertion of a conflict of interest at trial, our
review on appeal is limited to determining whether the
trial court knew or had reason to believe a particular
conflict existed. State v. Parrott, supra, 262 Conn. 286.
Here, in response to the defendant’s initial motion for
new counsel, the trial court’s duty was to determine,
in the first instance, what was the nature and substance
of the defendant’s complaints.
Since the filing of a grievance does not give rise to a
per se conflict of interest under Vega, and the defendant,
having led the court to believe it had resolved, to the
defendant’s satisfaction, his litany of specific com-
plaints, the court had no reason to know a particular
conflict of interest existed requiring it to conduct fur-
ther inquiry about the grievance itself. Given that the
trial court was faced in subsequent proceedings with
only vaguely expressed complaints which the defendant
declined to specify to the court by filing a written
motion, and that it had received several assurances
from defense counsel as to his ability to continue repre-
senting the defendant zealously, we conclude that the
trial court did not fail in its duty to inquire into the
specific nature of the grievance.
II
The defendant next claims that the court improperly
denied his motion to suppress the out-of-court and in-
court identifications of him that were made by Murray.
The defendant argues that Murray’s identifications were
the unreliable results of an unnecessarily suggestive
procedure conducted in the absence of exigent circum-
stances supporting the need for an immediate identifica-
tion. The defendant argues that the admission of
Murray’s identification testimony at trial violated his
federal and state constitutional rights to due process.
We disagree.14
The following additional facts are relevant to our
resolution of this claim. On September 17, 2015, the
defendant filed a motion to suppress identifications
made by Murray and McNamara.15 The trial court held
a hearing on the motion to suppress, during which it
heard testimony from several people, including McNa-
mara, Murray, Jamie, Baker, Soucy, and the victim. The
testimony revealed the following facts.
McNamara entered the women’s bathroom and
observed an assailant in the bathroom, straddling the
victim. Her shirt was pushed up to just under her breasts
and the assailant’s hands were under her shirt. The
lights were turned on in the bathroom and in the hallway
outside of the bathroom. McNamara ordered the assail-
ant out of the bathroom and Murray attempted to gain
control of the assailant and hold him on the ground.
After Murray was unable to gain control of the assailant,
they were involved in a physical altercation. At some
point during the physical altercation, the assailant
attempted to reenter the bathroom and McNamara
yelled very loudly ‘‘get the hell out of here’’ and pointed
to the door. The assailant left the area and McNamara
called 911.
Murray described the assailant as a white male with
dark hair, 200 pounds, at least six feet tall, and wearing
a loose fitting outer garment. McNamara described the
assailant as a white male, who was around six feet tall,
weighed 220 pounds, had dark hair, and was wearing
a very vivid green fleece jacket. Murray had seen the
assailant approximately eight times earlier that day,
including during the parade, in the beer tent, and at
the bonfire.
Murray described the incident to police while at the
scene of the assault. Soucy asked Murray if he knew
the name of the assailant and Murray replied that he
did not know his name, but he knew the person. Murray
was presented with a single photograph of the defen-
dant. The photograph was an image that was on a cell
phone that the police had obtained from Baker.16 The
police took the cell phone from Baker and, approxi-
mately forty-five minutes from the time of the assault,
the police showed the picture to Murray. The officer
asked Murray if he recognized the person, and Murray
identified the image as depicting the person who had
committed the assault.
The court denied the defendant’s motion to suppress
Murray’s identifications of him. The court found that
the exigencies of this case weighed in favor of the state,
and thus concluded that the out-of-court identification
procedure had not been unnecessarily suggestive. Fur-
thermore, the court found that Murray’s identification
was reliable. Subsequently, at trial, both Murray and
McNamara positively identified the defendant as the
man they had seen in the bathroom straddling the victim
on October 19, 2013.
The legal principles guiding our review of a court’s
denial of a motion to suppress a pretrial identification
are well settled. ‘‘Upon review of a trial court’s denial
of a motion to suppress, [t]he court’s conclusions will
not be disturbed unless they are legally and logically
inconsistent with the facts. . . . [W]e will reverse the
trial court’s ruling [on evidence] only where there is
abuse of discretion or where an injustice has occurred
. . . and we will indulge in every reasonable presump-
tion in favor of the trial court’s ruling. . . . Because
the issue of the reliability of an identification involves
the constitutional rights of an accused . . . we are
obliged to examine the record scrupulously to deter-
mine whether the facts found are adequately supported
by the evidence and whether the court’s ultimate infer-
ence of reliability was reasonable.’’ (Internal quotation
marks omitted.) State v. Elliston, 86 Conn. App. 479,
482–83, 861 A.2d 563 (2004), cert. denied, 273 Conn.
906, 868 A.2d 746 (2005).
‘‘In determining whether identification procedures
violate a defendant’s due process rights, the required
inquiry is made on an ad hoc basis and is two-pronged:
first, it must be determined whether the identification
procedure was unnecessarily suggestive; and second,
if it is found to have been so, it must be determined
whether the identification was nevertheless reliable
based on examination of the totality of the circum-
stances. . . . The first suggestiveness prong involves
the circumstances of the identification procedure itself
. . . and the critical question is whether the procedure
was conducted in such a manner as to emphasize or
highlight the individual whom the police believe is the
suspect. . . . If the trial court determines that there
was no unduly suggestive identification procedure, that
is the end of the analysis, and the identification evidence
is admissible.’’ (Citations omitted; internal quotation
marks omitted.) State v. Dickson, 322 Conn. 410, 420–21,
141 A.3d 810 (2016), cert. denied, U.S. , 137 S.
Ct. 2263, 198 L. Ed. 2d 713 (2017). ‘‘An identification
procedure is unnecessarily suggestive only if it gives
rise to a very substantial likelihood of irreparable mis-
identification. . . . The defendant bears the burden of
proving both that the identification procedures were
unnecessarily suggestive and that the resulting identifi-
cation was unreliable.’’ (Internal quotation marks omit-
ted.) State v. Thompson, 81 Conn. App. 264, 269–70,
839 A.2d 622, cert. denied, 268 Conn. 915, 847 A.2d
312 (2004).
‘‘The use of a single photograph for identification
purposes is not overly suggestive per se. . . . It is, how-
ever, absent exigent circumstances, almost always
unnecessarily and impermissibly suggestive. . . . The
danger of misidentification of a suspect by a witness
is increased where the photograph of an individual is
in some way emphasized. . . . Showing a witness a
single photograph rather than an array of photographs
obviously emphasizes that photograph. . . . Any one-
to-one type [of] confrontation between a witness or
victim and a person whom the police present to him
as a suspect must necessarily convey the message that
the police have reason to believe that person guilty.’’
(Citations omitted; internal quotation marks omitted.)
State v. Elliston, supra, 86 Conn. App. 483–84. Our
Supreme Court also has ‘‘recognized, however, that the
existence of exigencies may preclude such a procedure
from being unnecessarily suggestive. . . . In the past,
when we have been faced with the question of whether
an exigency existed, we have considered such factors
as whether the defendant was in custody, the availabil-
ity of the victim, the practicality of alternate procedures
and the need of police to determine quickly if they are
on the wrong trail.’’ (Citations omitted; emphasis in
original; internal quotation marks omitted.) State v. Led-
better, 275 Conn. 534, 549, 881 A.2d 290 (2005), cert.
denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d.
537 (2006).
In the present case, the single photograph used to
identify the assailant was a Facebook photo on a cell
phone. In evaluating whether the use of the photograph
occurred under exigent circumstances, the court con-
sidered the following evidence. First, Murray viewed
the photograph forty-five minutes after the assault that
he had witnessed, which gave Murray the opportunity
to identify the assailant while his memory was still
fresh. Second, the identification procedure arose after
an assailant had committed a violent sexual assault in
a public place where hundreds of people were spending
the night in tents and RV’s and the assailant was still
at large. Third, according to one witness, the name
‘‘Dale’’ was being circulated in the crowd as someone
who had committed a sexual assault, and police needed
to determine whether their efforts to locate ‘‘Dale’’ were
likely to result in the capture of the right person. Finding
that these factors amounted to exigent circumstances,
the court concluded that the use of the cell phone photo-
graph was not unnecessarily suggestive.
On the basis of our independent review of the record,
we conclude that the trial court did not abuse its discre-
tion in denying the defendant’s motion to suppress.
Even if we were to assume that the identification proce-
dure was suggestive, we conclude that given the public
safety concerns and the immediate need to apprehend
the assailant, the court properly found that the proce-
dure was necessary due to exigent circumstances. See
State v. Revels, 313 Conn. 762, 769, 99 A.3d 1130 (2014),
cert. denied, U.S. , 135 S. Ct. 1451, 191 L. Ed. 2d
404 (2015).
Moreover, the court also concluded that Murray’s
identification of the defendant was reliable. ‘‘If the court
finds that there was an unduly suggestive procedure,
the court goes on to address the second reliability
prong, under which the corruptive effect of the sugges-
tive procedure is weighed against certain factors, such
as the opportunity of the [eyewitness] to view the crimi-
nal at the time of the crime, the [eyewitness’] degree
of attention, the accuracy of [the eyewitness’] prior
description of the criminal, the level of certainty demon-
strated at the [identification] and the time between the
crime and the [identification].’’ (Internal quotation
marks omitted.) State v. Dickson, supra, 322 Conn. 421;
see also Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.
Ct. 2243, 53 L. Ed. 2d 140 (1977).
Murray had numerous opportunities to view the
defendant during the daylong event, which included
several exchanges with the defendant prior to the
assault. On several occasions, the defendant attempted
to get another beverage from the beer tent, and Murray
had to tell the defendant to leave the beer tent. Murray
also paid particular attention to the defendant in the
beer tent because he was uncomfortable with the way
that he was staring at the victim and his daughter. There
was lighting in both the bathroom and the Grange Hall
where Murray confronted the defendant. While in the
Grange Hall, Murray attempted to restrain the defen-
dant on the floor, which ultimately resulted in a face-
to-face physical altercation between them. He provided
the police with a description of the assailant’s race,
gender, hair color, height, weight, and clothing. Approx-
imately forty-five minutes after the assault, Murray
viewed the Facebook photo presented to him by the
police on Baker’s cell phone, and he was certain that
the man in the photo was the man who had assaulted
the victim. Accordingly, the court did not abuse its
discretion in denying the defendant’s motion to sup-
press Murray’s out-of-court identifications.17
The judgment is affirmed.
In this opinion the other judges concurred.
1
Although the jury also found the defendant guilty of unlawful restraint
in the first degree in violation of General Statutes § 53a-95 (a) and assault
in the second degree in violation of General Statutes § 53a-60a (a) (1), the
trial court did not enter judgment on those charges because they arose from
the ‘‘same incident’’ as the strangulation charge. See General Statutes § 53a-
64aa (b).
2
In accordance with our policy of protecting the privacy interests of the
victims of sexual assault, we decline to identify the victim or others through
whom her identity may be ascertained. General Statutes § 54-86e.
3
‘‘Facebook is a social networking website that allows private individuals
to upload photographs and enter personal information and commentary on
a password protected ‘profile.’ ’’ State v. Eleck, 130 Conn. App. 632, 634 n.1,
23 A.3d 818 (2011), aff’d, 314 Conn. 123, 100 A.3d 817 (2014).
4
It is undisputed that the police did not preserve the Facebook photo
that Soucy presented to Murray.
5
The grievance that the defendant filed with the Statewide Grievance
Committee was not included in the record.
6
While we acknowledge that a trial court is obligated to inquire into a
conflict when it knows or reasonably should know that a particular conflict
exists, given the facts of this case, by failing to submit the very concerns
he now pursues on appeal, the defendant essentially asks us to engage in
trial by ambuscade. See State v. Campanaro, 146 Conn. App. 722, 731, 78
A.3d 267 (2013) (‘‘[f]or this court to . . . consider [a] claim on the basis of
a specific legal ground not raised during trial would amount to trial by
ambuscade, unfair both to the [court] and to the opposing party’’ [internal
quotation marks omitted]), cert. denied, 311 Conn. 902, 83 A.3d 604 (2014).
We decline to endorse such behavior.
7
We note that in claiming trial court error, the defendant makes no claim
that there was an actual conflict of interest or that his trial counsel was inef-
fective.
8
The petitioner in Morgan argued that a conflict of interest existed
between him and habeas counsel because he disagreed with the strategy
that habeas counsel employed at the habeas proceeding. Morgan v. Commis-
sioner of Correction, supra, 87 Conn. App. 129. Responding to the petitioner’s
concern with his counsel’s strategy, the court stated: ‘‘That is not a conflict
of interest.’’ (Internal quotation marks omitted.) Id. The court asked the
petitioner, ‘‘[h]ow is there a conflict of interest between you and [counsel]?’’
(Internal quotation marks omitted.) Id. The petitioner replied, ‘‘I have filed
several grievances [against] him with the statewide [grievance committee],
at least five.’’ (Internal quotation marks omitted.) Id. His habeas counsel
then corrected him and informed the court that the petitioner had filed
three grievances against him. Id. The court did not inquire further into the
nature of the grievances that the petitioner filed against counsel. Id.
9
In Vega, the following colloquy between the defendant and the court
took place:
‘‘The Court: . . . I do want to ask you, Mr. Vega, some questions about
this matter. Because apparently you do not have a copy of the document
you sent to the grievance committee.
‘‘The Defendant: No, I don’t.
‘‘The Court: You do not?
‘‘The Defendant: No, sir. . . .
‘‘The Court: All right. Have you in fact filed a grievance against
[defense counsel]?
‘‘The Defendant: Yes, I have.
‘‘The Court: And when was that done?
‘‘The Defendant: It was approximately Tuesday last week.
‘‘The Court: Of last week?
‘‘The Defendant: Yes.
‘‘The Court: All right. The record should further reflect that [defense
counsel] did call the grievance committee in East Hartford and they indicated
that they either don’t have it logged in or don’t have it there yet, but it’s
possible that it’s somewhere in the paperwork. Do you have anything, a
copy of anything that would indicate what your claims are against
[defense counsel]?
‘‘The Defendant: No, Your Honor, except just my memory.
‘‘The Court: All right. Would you indicate for me as best your memory
allows you what is it you have grieved [defense counsel] for? . . .
‘‘The Defendant: . . . Just that counsel and I have not discussed this
case thoroughly. There’s aspects in this case that I feel like I could shed
light upon. He disregards . . . . Really counsel’s actions are not to my
satisfaction. He ignores my request to interview associates who can describe
me as who I am. . . .
‘‘The Court: But is there anything further? . . . So your basic claim with
the grievance committee are pretty much the same things you told me here
Wednesday of this week as to why you wanted me to dismiss [defense
counsel].
‘‘The Defendant: Exactly.’’ State v. Vega, supra, 259 Conn. 390–91 n.18.
10
In making this comparison, we do not suggest that the trial court’s
decision here to continue the hearing for two days to allow the defendant
to prepare a list of his concerns should be the standard in all cases. We are
mindful of the constraints on our review, articulated in State v. Robinson,
supra, 227 Conn. 725, to the extent that such inquiries must be ‘‘tempered
by the timing of such complaints.’’ We note that the defendant’s oral motion
was raised in the context of his motion for a speedy trial, and no trial date
appears to have been scheduled. By contrast, our case law suggests that
motions for new counsel are often raised on the eve of trial and even
mid-trial.
11
In Robinson, our Supreme Court considered the propriety of the trial
court’s inquiry into the defendant’s complaints concerning his counsel’s
performance. State v. Robinson, supra, 227 Conn 725. The Supreme Court
stated that ‘‘the record reveals that the trial court permitted the defendant
an opportunity fully to inform the court of his grievances, treated them
as important and took appropriate action where necessary or possible.’’
Id., 726.
12
In stating that he ‘‘would actually welcome the opportunity to sit down
and break some bread with . . . McKay, and continue to go forward,’’ the
defendant declared his intention to ‘‘talk with . . . McKay so [they] could
both collaborate and figure out what’s gonna be best for [them] moving
forward.’’
13
‘‘The Court: Well, with all due respect Mr. Kukucka, the court has to
be careful that it does not cede its duty to a defendant insofar as court
scheduling is concerned. This case has been scheduled for trial once at your
demand that there be a speedy trial. When I brought the matter in and told
the lawyers to be ready you then pulled back and withdrew your motion
for a speedy trial. You then withdrew it at the same time your request for
new counsel. And now another three months [have] passed by, uneventfully,
and now the lawyers report that they’re ready to begin. Now, you’re renewing
your motion for new counsel.
‘‘I’m not going to turn over to you the right to dictate the timing of this
trial. And I’m beginning to have some concerns, in my mind, regarding
whether or not that’s exactly what you’re trying to do, wrest control of this
schedule from me and turn it over to yourself.
‘‘This is an old case, the victim of the case, alleged victim of the case,
has the right to have a speedy disposition, as do you. When you urged the
court, or demanded a speedy trial, I was prepared to give it to you. The
parties dropped everything, began to get it ready, then you withdrew that.
You said you wanted a new lawyer, I was ready to hear you, then you said,
no, I’ve changed my mind, I’m going to work with . . . McKay. This is
not a game of ping-pong where you suddenly change your mind on each
court date.
‘‘So, unless you’re going to present to me [a] compelling reason why there
should be a new lawyer then . . . McKay is going to remain [your] lawyer.
I am not going to accept, at this point, that you are praying and pondering
over whether or not you should retain private counsel.
‘‘So, if you’re hiring private counsel I would, sincerely, and seriously, urge
you to tell that lawyer with whom you’re engaged in negotiations that the
trial is scheduled to begin on September 21.’’
14
We need not address the defendant’s argument that any subsequent in-
court identification was irreparably tainted by the unnecessarily suggestive
out-of-court identification because we conclude that the out-of-court identifi-
cation was the result of a necessary procedure. State v. Dickson, 322 Conn.
410, 433, 141 A.3d 810 (2016) (in-court identifications do not implicate defen-
dant’s due process rights when there has been a nonsuggestive out-of-court
identification procedure), cert. denied, U.S. , 137 S. Ct. 2263, 198 L.
Ed. 2d 713 (2017).
15
On appeal, the defendant does not contest the trial court’s admission
of McNamara’s in-court and out-of-court identifications of the defendant.
16
The police failed to preserve the Facebook photo that the police officer
showed to Murray. We note that ‘‘the failure to preserve a photographic
array does not preclude a finding that an identification procedure was not
suggestive.’’ State v. Hunt, 10 Conn. App. 404, 408, 523 A.2d 514 (1987); see
also State v. Rivera, 70 Conn. App. 203, 209, 797 A.2d 586, cert. denied, 261
Conn. 910, 806 A.2d 50 (2002).
17
We further conclude from a review of the entire factual record that the
admission of the Murray identification evidence, even if improper, was
harmless beyond a reasonable doubt. ‘‘If the admission of eyewitness identifi-
cation testimony is deemed to be improper, it is then subject to harmless
error review.’’ State v. Aviles, 154 Conn. App. 470, 478, 106 A.3d 309 (2014),
cert. denied, 316 Conn. 903, 111 A.3d 471 (2015). ‘‘[B]ecause of the constitu-
tional magnitude of the error, the burden falls on the state to prove that
the admission of the tainted identification was harmless beyond a reasonable
doubt.’’ State v. Artis, 314 Conn. 131, 154, 101 A.3d 915 (2014). Even without
Murray’s pretrial and trial identifications, the state had a strong case against
the defendant. McNamara also witnessed the assailant in the bathroom.
McNamara identified the defendant out-of-court, in a double blind photo
array administered by the police two days after the assault, and McNamara
identified the defendant as the assailant at trial. The defendant also matched
the description given by both McNamara and Murray. Furthermore, the
defendant had a fair opportunity to cross-examine Murray at trial and chal-
lenge his identification of the defendant as the assailant. See id., 161 (defen-
dant’s opportunity to cross-examine eyewitness was factor in harmlessness
analysis). Accordingly, we conclude that, even if the admission of the eyewit-
ness identification testimony were improper, it was harmless beyond a
reasonable doubt. See State v. Aviles, supra, 482.